45 F1d 194

Act Congo Sept. 26, 1888, prohibiting the mailing of matter on the outside cover or wrapper containin!l' ranguage "calculated by its terms It' It It and obviously intended to reflect inJuriously upon the character or conduct of another, II does not to a printed paper containing such language, which is not inclosed in a wrapper, but which is merely folded, and the postage stamps placed on the paper itself.

At Law. Lewia G. Palmer, U. S. Atty., and P. W. StevenS, Asst. U. S. Atty. H. P. Stewart and H. J. Felker,for defendant. SEVERENS, J. Defendant was indicted for a violation of the act of congress of September 26, 1888, (25 St. at Large, p. 496, amended section 3,) which prohibits the mailing of matter upon the outside cover or wrapper of which is language "calculated by its terms * * * and obviously intended to reflect injuriously upon the character or conduct of another." The evidence introduced on the part of the government at the trial of the case showed that the defendant caused to be deposited in the post-office at Centreville, Mich., for mailing and delivery, a IMge number of four-page printed circulars, about the size of a sheet of note paper, upon all four pages of which was printed maUer,-:'-being an account of certain dealings between defendant and another; that these circulars, as deposited forIPailing, had no separate wrapper or cover over them, but were folded twice oblong shape, and the postage stamps placed upon the circulars themselves. 'Upon the outside pages of the circulars, as so folded and mailed, was language claimed to be "calculated by its tElrms * * * and obviously intended to reflectinjuriously upon the character and conduct of another." Defendant's counsel moved the court (SEVERENS, J.)to directa verdict of not guilty, for the reason that the objectionable language was not upon the outSIde cover or wrapper of the matter mailed, there being no such cover or wrapper; and that, consequently, the case' was not within the s,tatute referred to. The motion was granted, and the jury directed accordingly, the court holding tbat this section of the statute applies only to matter exhibited upon an inclosing wrapper or cover, and not to matter which is contained in the body of the thing mailed; that, the statute being one constituting it criminal offense, it cannot be extended by constrnction to cases where there is no wrapper Of cover at all, even though such cases may be within the reason and policy of the enactment.

·" An indictment under Rev. St. U. S. 5 5480, for using'the mafIs with the intent to 'defraud, charged'that defendant sent circulars through the mails, stating thathe had a certain kind of ,seed wheat whici;l he would ata certain price per bushel, and that, in accordance with a previously formed' intention to defraud every Qne sendlng him money, he kept the money sent:byvarioue persons to purchase such wheat, alld sent them no wheat whatever. Held that, ,in order to convict, it must besbowli that defendant intended to defraud every persoll sending him mone,. during the ,time alleged. ' , ' The'second count 01 the indictment charged that' defendant, iii furtherance of · scheme to defraud the public, sent circulars through the mails, stating that he had blueberry plants to sell; and that he intended giving no plants of any value for the money received. The evidence tended to spow that defendant shipped wild huckleberry,plantsl whicl1he gathered, in the WGods, while his advertisement described what would De understood as a cultivated plant, and conveyed the idea that he was enga/ted in its culture. It also appeared that manr of the plants had been set out by purchasers"but failed to live. HeW, that the JUry should consider whether it was. represented by the circular that defendant had a place where he grew the plants, or had the means of procuring them, or whether it was implied that the,. were wild plants, or were such as wel'e raised by' people in the business.
'" ',,', ,,'

"SAME.

& SAJr[Il.

The jury may also consider whether it was defendant's practice to transact busi· ness with people at a long distance, and, if they find that fact, may consider it as a circumstance in the 4. BAME-:EXAGGIlRATING V ALUB 0., GoODS. The practice of exaggerating the value of goods o1fered for sale is not criminal U restricted within reasonable bounds, alld is not done with fraudulent intent.
II. BAKB-DIlJ'RAUDING NEWSPAPERS.

One who, through the mails, induces newspaper publishers to insert advertisements in theirfapers on a promise to pay the bills therefor when rendered, if he hall no intention 0 so doing, is guilty of using the malls for the purpose of defrauding· In sucb case the iurymay COD sider the fact that defendant failed to repl,y to the letters of such publishers, requesting payment of their bills.

.. BAMB.

At Law. Defendant was indicted for carrying on, through the mails, various schemes to defraud, in violation of section 5480, Rev. St. The indictment set forth three distinct schemes and offenses. The first count charged defendant with advertising in divers newspapers throughout the United States and by means of circulars sent through the mails, that he had for sale a certain high grade of wheat, which he would furnish for a certain price per bushel; that be was sent various sums of money by different persons, but, in accordance with a previously formed intention to defraud everyone sending him inoney, he appropriated the money without sending any wheat whatever. The second count charged like extensive advertising of "blueberry" plants, and that defendant intended giving no plants of any value for the money received. The third count charged defendant with inducing divers newspaper publishers throughout the United States to publish his various advertisements, intending never to compensate them therefor. Each count charged the mailing of particular letters in executing the respective schemes to defraud. The evidence adduced in connection with the first count tEC'nded to show thai in particular occurring during the period set up in the indict-